RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  31 May 2007
	DOCKET NUMBER:  AR20070004584 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  


Mr. Gerard W. Schwartz

Acting Director

Mr. John J. Wendland, Jr.

Analyst


The following members, a quorum, were present:


Mr. William F. Crain

Chairperson

Mr. Donald L. Lewy

Member

Mr. Roland S. Venable

Member

	The Board considered the following evidence: 

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that he be paid the $40,000.00 Army College Fund (ACF) kicker.

2.  The applicant states, in effect, that nowhere in his enlistment contract does it state that the Montgomery GI Bill (MGIB) would be included with his $40,000.00 ACF.  He also states, in effect, that he turned down a large cash bonus to receive a much smaller cash bonus of $5,000.00, along with the ACF kicker in the amount of $40,000.00, which would be above and beyond the amount he received from the MGIB.  He further states, in effect, that his enlistment contract shows "ACF - $40,000", not "ACF & MGIB - $40,000."  The applicant also states, in effect, that he feels that he was misled and deceived at the time of his enlistment and, if he had been properly informed at the time, he would have been better off taking the full cash bonus.  The applicant continues by stating, in effect, that this is hard for him to accept because he fulfilled his part of the 4-year U.S. Army enlistment contract, including serving 1 year in Iraq.  The applicant adds that at the time of his enlistment, the MGIB was $19,296, which is exactly the amount that he has been shorted.  The applicant concludes by stating he is still attending college and suggests that the amount owed could be divided amongst the remainder of his MGIB payments.

3.  The applicant provides a copy of page 3 of DD Form 1966 (Record of Military Processing - Armed Forces of the United States), dated 8 December 1999; page 1 of DA Form 3286-59 (Statement for Enlistment, U.S. Army Enlistment Program, U.S. Army Delayed Enlistment Program), Annex A; page 1 of DA Form 3286-66 (Statement of Understanding, U.S. Army Incentive Enlistment Program), Annex D; and USAREC Form 1150-R-E (Statement of Understanding - Army Policy, USAREC Addendum to DD Form 1966 Series), dated 20 December 1999.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military service records show that he enlisted in the U.S. Army Reserve (USAR) Delayed Entry/Enlistment Program on 20 December 1999 and entered active duty in the Regular Army (RA) on 28 June 2000 for a period of
4 years.  Upon completion of basic combat training and advanced individual training, the applicant was awarded military occupational specialty 19D (Cavalry Scout).

2.  The applicant's service records contain a DD Form 1966-Series (Record of Military Processing - Armed Forces of the United States), dated 8 December 1999.  Item 32 (Specific Option/Program Enlisted for, Military Skill, or Assignment to a Geographical Area Guarantees), section a, shows that he enlisted for the U.S. Army Station/Unit/Command/Area Enlistment Program with requested options of Fort Riley, Kansas; MOS 19D1O; a 4 year enlistment; and the
U.S. Army Incentive Program - $5,000.00 Cash Bonus and $40,000.00 ACF.

3.  The applicant's service records contain a DA Form 3286-59 (Statement for Enlistment, U.S. Army Enlistment Program, U.S. Army Delayed Enlistment Program), Annex A, dated 20 December 1999.  Item 1 (Acknowledgement) of this document shows that he enlisted for the U.S. Army Station/Command/Unit/ Area Enlistment Program (Fort Riley, Kansas), the U.S. Army Incentive Program ($5,000.00 Cash Bonus and $40,000.00 ACF), and that the date of his enlistment in the RA was scheduled for 28 June 2000.

4.  The applicant's service records contain a DA Form 3286-67 (Statement of Understanding, Army Policy), Annex B, dated 20 December 1999.  Item 5 of this document shows that he enlisted for the MGIB and ACF Educational Incentive Programs and contains the applicant's initials under the "Yes" column in this item.  This document also shows that it was authenticated by the applicant and the Army Guidance Counselor on 20 December 1999.

5.  The applicant's service records contain a DA Form 3286-66 (Statement of Understanding, U.S. Army Incentive Enlistment Program), Annex D, dated
28 June 2000.  Item 1a of this document shows that he was enlisting in the RA for, in addition to the U.S. Army Station/Unit/Command/Area Enlistment Program and Army Cash Bonus, the ACF.  Paragraph 3 states that, if his incentive in paragraph 1a was the ACF, he would be awarded the amount of $40,000.00 (for a 4-year enlistment) provided that he remained enrolled in the MGIB to retain this incentive.

6.  The applicant's records contain a DD Form 2366 (Montgomery GI Bill Act of 1984), dated 20 December 1999.  Item 2 (Statement of Understanding), section
c (All Other Service Members), of this document shows, in pertinent part, that the applicant was eligible for the MGIB and understood he was automatically enrolled in the MGIB unless he exercised the option to disenroll by signing Item
4 of the document.  The document also shows that the applicant affixed his signature to this section of the statement of understanding that he was enrolled in the MGIB, as required for eligibility of the ACF incentive.  Item 3 (Service Unique Education Assistance Options) contains the handwritten entries "MOS: 19D", "TOS: 4 yrs 00 wks", and "($40,000.000 ACF)."  Item 4 (Statement of Disenrollment) of the document is absent the applicant's signature.

7.  The applicant's records contain a USAREC Form 1150-R-E (Statement of Understanding - Army Policy, USAREC Addendum to DD Form 1966 Series), dated 20 December 1999.  The Incentive Information section of this form shows, in pertinent part, in Item 11 the applicant's initials indicating, "Enlisted for 40,000 ACF [and] 5,000 Cash Bonus (Incentive) in accordance with "HQDA Message #141505Z dated Dec 99 for MOS 19D for 4 years 00 weeks."

8.  The applicant's military service records show that he served 11 months and 24 days in Kuwait and Iraq in support of Operation Iraqi Freedom from 5 March 2003 to 28 February 2004.  He was honorably released from active duty (REFRAD) on 27 June 2004 after completing a total of 4 years active service.

9.  The applicant's military service records show that he enlisted in the Army National Guard (ARNG) on 7 November 2005 and is currently serving in the Kansas ARNG.

10.  In the processing of this case, an advisory opinion was provided by the Education Incentives Branch, U. S. Army Human Resources Command (USA HRC), Alexandria, Virginia.  On 10 April 2007, that office noted that since
1 April 1993 (to 30 September 2004) the dollar amounts reflected in a Soldier's enlistment contract (i.e., on the DA Form 3286-66) have combined MGIB and ACF benefits.  It noted that the DA Form 3286-66 does not clarify that information and is misleading to the member entering active duty.  The advisory official adds that the proponent of the form, the U.S Army Recruiting Command, has since revised the form and produced it in an electronic format, to include appropriate changes.

11.  The advisory opinion states that the applicant's contract reflects $40,000.00 ACF.  This dollar amount included $19,296.00, which was the basic rate of the veteran's MGIB when the applicant entered active duty on 28 June 2000.  The remaining amount (i.e., $20,704.00) is his ACF incentive.  To determine the monthly rate for the applicant's ACF incentive, $20,704.00 is divided by
36 months of benefits and therefore equates to $575.11 per month for up to
36 months of benefits for full time training.  The advisory recommended that, if the Board grants the applicant's request, the computation of any payment be based on the basic rate of the MGIB when he entered active duty and adds that total was $19,296.00.  It also recommended that any authorized compensation be sent directly to the applicant.

12.  On 11 April 2007, a copy of the advisory opinion was provided to the applicant for comment or rebuttal.  On 22 April 2007, the applicant responded by providing his concurrence with the advisory opinion rendered in his case.
13.  Table 9-4 of Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), dated 28 February 1995 (the version in effect at the time of the applicant's enlistment), explains the ACF. It states, “[a]pplicants for enlistment will be advised of the following:  The ACF provides additional educational assistance in addition to that earned under the GI Bill.  The money earned is deposited in the Soldier's Department of Veterans' Affairs account.  Normally, the funds will be disbursed to the participant in 36 equal monthly installments while the person is enrolled in an approved program of education.”

14.  Headquarters, U.S. Army Recruiting Command (USAREC) message 98-080, dated 12 November 1998, increased the total amounts of the ACF (to $40,000.00 for a 4-year enlistment), effective 12 November 1998.  This message stated, in pertinent part, "No attempt will be made to describe or provide applicants a breakdown of the MONTGOMERY GI BILL AND ARMY COLLEGE FUND amounts.  The amounts reflected above are the total combined amounts of the MGIB and ACF authorized as of 12 Nov 98."

15.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been carefully considered.  

2.  It is acknowledged that nowhere in his contract does it state the ACF amount includes the MGIB.  However, in the absence of evidence to the contrary (such as sworn statements or affidavits from his recruiting officials), administrative regularity is presumed regarding the regulatory requirement for applicants for enlistment to be properly advised of the ACF.

3.  Army Regulation 601-210, Table 9-4, explains the ACF and states applicants for enlistment will be advised the ACF provides additional educational assistance in addition to that earned under the MGIB.  USAREC message 98-080, dated
12 November 1998, clarified that the amount reflected was to be the total combined amount of the MGIB and the ACF.  The applicant enlisted in the USAR in December 1999 and entered the RA June 2000.  There is insufficient evidence to show he was not advised that the $40,000.00 listed as his ACF benefit was the total combined amount of the MGIB and the ACF.
4.  Regrettably, there is insufficient evidence which would warrant granting the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___WFC _  __DLL __  ___RSV _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




_____William F. Crain_____
          CHAIRPERSON




INDEX

CASE ID
AR20070004584
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/05/31
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
20040627
DISCHARGE AUTHORITY
AR 635-200, Chapter 4 
DISCHARGE REASON
Completion of Required Active Service
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
103.0100.0000
2.

3.

4.

5.

6.